FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGELIO CAMACHO-CRUZ, 

Petitioner, No. 08-74483

v. Agency No.  A017-256-460 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 12, 2010*

San Francisco, California

Filed September 2, 2010

Before: Susan P. Graber, Consuelo M. Callahan, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Graber

*The panel unanimously finds this case suitable for decision without

oral argument. Fed. R. App. P. 34(a)(2). 

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COUNSEL

Xavier Gonzales, Las Vegas, Nevada, for the petitioner.

Charles E. Canter, U.S. Department of Justice, Office of

Immigration Litigation, Washington, D.C., for the respondent.

OPINION

GRABER, Circuit Judge:

Petitioner Rogelio Camacho-Cruz, a Mexican national,

appeals the Board of Immigration Appeals’ (“BIA”) denial of

cancellation of removal because of his conviction for assault

with a deadly weapon under Nevada state law. Petitioner

argues that his conviction is not a “crime of violence” within

the meaning of 18 U.S.C. § 16 and, therefore, that he remains

eligible for cancellation of removal. We are not persuaded.

We hold that Petitioner’s conviction is categorically a crime

of violence and, as a result, we dismiss the petition. 

Petitioner is a native and citizen of Mexico who was admitted to the United States in 1966. About 40 years later, he

pleaded guilty in a Nevada state court to one count of assault

with a deadly weapon in violation of Nevada Revised Statutes

section 200.471 (2006). The state court sentenced Petitioner

to 24 to 60 months in prison. The state court then suspended

his prison sentence and placed him on probation for an indeterminate period not to exceed three years.

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The Department of Homeland Security (“DHS”) then commenced removal proceedings against Petitioner. DHS charged

Petitioner with removability as an aggravated felon under 8

U.S.C. § 1227(a)(2)(A)(iii) because, it alleged, assault with a

deadly weapon is a “crime of violence” under 18 U.S.C. § 16.

Petitioner, through counsel, admitted all the factual allegations against him but denied removability. He also filed a

motion to terminate the proceedings, arguing that assault with

a deadly weapon under Nevada state law is not a crime of violence.

An immigration judge (“IJ”) denied Petitioner’s motion to

terminate and ordered Petitioner removed to Mexico because

the Nevada conviction constituted a crime of violence. Petitioner appealed to the BIA, which adopted and affirmed the

IJ’s decision and dismissed Petitioner’s appeal. Petitioner

timely petitions for review.1

To be eligible for cancellation of removal, a nonpermanent

resident alien must establish that he or she: (1) has been physically present in the United States for a continuous period of

not less than 10 years immediately preceding the date of

application; (2) has been a person of good moral character

during such period; (3) has not been convicted of certain

criminal offenses, including “crimes of violence” as defined

by 18 U.S.C. § 16; and (4) establishes that removal would

result in exceptional and extremely unusual hardship to the

alien’s spouse, parent, or child, who is a citizen of the United

States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1229b(b)(1). A failure to satisfy any one of those

four requirements is fatal to a cancellation application. MatusLeva v. United States, 287 F.3d 758, 760 (9th Cir. 2002). The

issue joined here is whether the third criterion is met.

1We review de novo legal determinations regarding an alien’s eligibility

for cancellation of removal, Montero-Martinez v. Ashcroft, 277 F.3d 1137,

1145 (9th Cir. 2002), as well as decisions that a conviction is a crime of

violence, Rosales-Rosales v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003).

13372 CAMACHO-CRUZ v. HOLDER
[1] To determine whether a state law conviction is categorically a “crime of violence,” we compare the elements of the

state law crime to the elements of a “crime of violence,” as

defined in 18 U.S.C. § 16. See Rosales-Rosales v. Ashcroft,

347 F.3d 714, 717-18 (9th Cir. 2003). Title 18 U.S.C. § 16

defines a crime of violence as:

(a) an offense that has as an element the use,

attempted use, or threatened use of physical force

against the person or property of another, or

(b) any other offense that is a felony and that, by

its nature, involves a substantial risk that physical

force against the person or property of another may

be used in the course of committing the offense.

Nevada Revised Statutes section 200.471 provides, in pertinent part:

1. As used in this section:

(a) “Assault” means intentionally placing another

person in reasonable apprehension of immediate

bodily harm.

. . . .

2. A person convicted of an assault shall be punished:

. . . .

(b) If the assault is made with the use of a deadly

weapon, or the present ability to use a deadly a

weapon, . . . by imprisonment in the state prison for

a minimum term of not less than 1 year and a maximum term of not more than 6 years . . . .

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Petitioner argues that he was not convicted of a crime of

violence because, he asserts, the Nevada state law under

which he was convicted does not necessarily involve conduct

covered by 18 U.S.C. § 16(a). Specifically, Petitioner claims

that the Nevada state law does not require actual harm or

injury to the victim and, therefore, is not a crime of violence.

We disagree.

[2] Petitioner was convicted of assault with use of a deadly

weapon under Nevada state law, which defines assault as “intentionally placing another person in reasonable apprehension

of immediate bodily harm.” Nev. Rev. Stat. § 200.471. Our

court has already concluded that a nearly identical crime,

assault with a deadly weapon under Arizona Revised Statutes

section 13-1204(A)(2), is a crime of violence under 18 U.S.C.

§ 16. United States v. Ceron-Sanchez, 222 F.3d 1169, 1172-

73 (9th Cir. 2000), overruled on other grounds by FernandezRuiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc).

The Arizona law prohibited “[i]ntentionally placing another

person in reasonable apprehension of imminent physical injury.” Id. at 1172. We held that, because the statute “requires

. . . [the] threatened use of force against the person of another,” the crime was a crime of violence. Id. at 1173. We also

held that assault with a deadly weapon under Arizona state

law was a crime of violence because there was “a high risk

of violence against the person of another” in the course of the

commission of the crime. Id.

Similarly, in Rosales-Rosales, we held that California Penal

Code section 422 constituted a crime of violence because it

prohibited willful threats to commit a crime that would result

in death or great bodily injury, even if there was no intent to

carry out the threat. 347 F.3d at 717. We reasoned that “[o]n

its face § 422 is an offense ‘that has as an element the threatened use of physical force against the person or property of

another’ ” and, therefore, held that “§ 422 meets the definition

of a ‘crime of violence’ as set forth in § 16(a).” Id.; see also

Ortiz-Magana v. Mukasey, 542 F.3d 653, 661 (9th Cir. 2008)

13374 CAMACHO-CRUZ v. HOLDER
(holding that assault with a deadly weapon under California

state law is a crime of violence).

[3] Just as with the Arizona and California statutes, the

Nevada statute constitutes a crime of violence because the

statute requires that the defendant, by using a deadly weapon,

intentionally create in another person a reasonable fear of

immediate bodily harm. Contrary to Petitioner’s assertions,

whether the defendant actually intends to harm the victim or

whether any harm does, in fact, result is irrelevant. Section

16(a) does not require an actual application of force or an

injury to the victim. Rather, the threatened use of force is sufficient for a crime to constitute a crime of violence.

[4] Assault with a deadly weapon under Nevada Revised

Statutes section 200.471 necessarily entails the threatened use

of force against the person of another. Because the defendant

must create a reasonable fear of harm in the victim and

because that fear is accomplished by means of a deadly

weapon, the crime, by its nature, involves a substantial risk of

force. See Ceron-Sanchez, 222 F.3d at 1173. Therefore, Petitioner’s conviction constitutes a crime of violence. 

Petition DISMISSED.

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